The Highest and Best Use Valuation for Property – The Synergy Between the Condemnation Award and the Escrow Amount

October 26, 2016 | No Comments
Posted by Connor E. Phalon

The Appellate Division of Superior Court recently published a decision providing further clarification of the seminal New Jersey Supreme Court condemnation case Housing Authority v. Suydam Investors, L.L.C. By way of background, in Suydam, the Court held that a condemned contaminated property should be valued “as if remediated” rather than “as is” when determining the condemnation award. In reaching this conclusion, the Court recognized that the valuation inquiry should not be limited to the actual use of the property, which would inherently be circumscribed by its contaminated status, but instead should rely on the property’s highest and best use. The Court emphasized, however, that an “as if remediated” valuation was an “enhanced value,” which included the estimated transactional costs associated with the remediation of the property to achieve its highest and best use. And in order to ensure that parties are not provided an unfair windfall through this form of valuation, the Court in Suydam opined that the condemnor may seek an order requiring such estimated transactional costs to be set aside in escrow to satisfy the condemnee’s clean-up and transfer obligations. Read more


October 19, 2016 | No Comments
Posted by Paul H. Schneider

Scattered throughout rural New Jersey are signs that say “Preserved Farmland – Private Land, Public Legacy.” A preserved farm is land that remains under private ownership, but is subject to an easement restricting the property to agricultural use, typically in perpetuity. A common means of preserving farmland is through New Jersey’s Agriculture Retention and Development Act (ARDA). Using funds from the sale of voter-approved bonds, the State Agriculture Development Committee (SADC) or a county agriculture development committee purchases a deed of easement (DOE) restricting future use of the property to agricultural purposes. Read more

Permit Extension Act Signed by Governor

July 22, 2016 | No Comments
Posted by Michael J. Gross

Yesterday, the New Jersey State Senate voted to extend the Permit Extension Act in the 9 Sandy-affected counties for another year until December 31, 2016 (many approvals will be extended until June 30, 2017).

The Governed signed this Legislation late last evening.

Permit Extension Act Poised for Governor’s Signature

July 22, 2016 | No Comments
Posted by Michael J. Gross

Today, the New Jersey State Senate voted to extend the Permit Extension Act in the 9 Sandy-affected counties for another year until December 31, 2016 (many approvals will be extended until June 30, 2017).

It is anticipated that the Governor will sign this Legislation sometime in early July.


July 22, 2016 | No Comments
Posted by Steven M. Dalton

The uncertainty involving the New Jersey Department of Environmental Protection’s (“DEP”) Public Access Rule promulgated in 2012 under the Coastal Zone Management Rules continues. The Supreme Court by Order dated June 17, 2016 denied the State’s Petition for Certification to challenge the Appellate Division’s Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v DEP, 443 N.J. Super 293 (App. Div. 2015) decision. In another Order issued the same day, the Court also denied the State’s motion for a stay of Hackensack Riverkeeper, and vacated an Order of the Court that had temporarily stayed the decision. Read more

The Appellate Division Reverses COAH’s Gap Period Requirement

July 12, 2016 | No Comments
Posted by Marc D. Policastro

This is big. Affordable housing in New Jersey has taken another major turn in the Court system due to the latest decision in the Appellate Division handed down on July 11, 2016. Most importantly, the Court’s decision holds that the plain language of the Fair Housing Act of 1985 does not require a municipality to retroactively calculate a new “separate and discrete” affordable housing obligation arising during the so-called “gap-period” from 1999 to 2015, supplementing the decision of the New Jersey Supreme Court in In Re Adoption of NJAC 5:96, 221 N.J. 1 (2015). The Court determined that such a consideration is best left to the legislative and executive branches. This decision brings more uncertainty to developers and municipalities alike. The FHA created COAH (Council on Affordable Housing) to establish an administrative alternative to litigating compliance issues with the Constitutional requirement that municipalities develop affordable housing, arising out of the court decisions in Mt. Laurel I and II. COAH adopted The First Round Rules: a period from 1987-1993; and The Second Round Rules: a period from 1993 to 1999. COAH’s Third Round Rules became the focus of much debate due to its proposed methodology in determining the municipalities’ requirements for developing their fair share of affordable housing. The delay in the promulgation of such rules brought about the “gap period” which is the focus of the Appellate Division’s current decision. Read more

DEP To Ramp-up Waterfront Development Compliance Efforts

June 3, 2016 | No Comments
Posted by Steven M. Dalton

DEP recently announced that it will more aggressively enforce Waterfront Development and CAFRA permitting compliance issues with respect to development along the waterfront. DEP’s compliance initiative will involve unannounced inspections by boat conducted by its Waterfront Enforcement Team (WET) at active waterfront construction sites. Owners of property along the waterfront who are engaged in development activities should ensure that they have applicable, valid approvals in place from DEP, and strictly follow applicable permit conditions. Care should also be taken to determine whether existing structures are legally existing or require legalization approvals.

The approval process involving development of waterfront parcels can be challenging. Pre and post-construction conditions must be carefully followed to avoid potential compliance issues. Appropriate due diligence should be conducted prior to acquisition of such parcels to evaluate whether approvals are needed for proposed development, and whether existing structures require legalization or may be eligible for “grandfathering” rights.

Giordano, Halleran & Ciesla’s attorneys have extensive experience with CAFRA and Waterfront Development permitting issues, and we frequently assist property owners in securing development approvals for new and existing structures and addressing compliance issues. If you have questions regarding this compliance initiative or DEP waterfront permitting or tidelands issues, please contact Steven Dalton of our Environmental Practice Group.

Court Addresses “Catalyst” Requirement under Mt. Laurel Doctrine and Rejects Township’s “All or Nothing” Approach to Builder’s Remedy in Cranford Development Associates LLC v. Township Of Cranford, A-5822-12T2, ___ N.J. Super. ___ (App. Div. 2016).

April 28, 2016 | No Comments
Posted by Marc D. Policastro

Co-authored by Melissa A. Clarke

In this recent affordable housing decision, the Appellate Division upheld a Union County trial court’s final order granting a builder’s remedy to plaintiff Cranford Development Associates, LLC (the “developer”) for the construction of a 360-unit residential development in Cranford. The court made several noteworthy points, the most significant of which relates to the requirement that the developer be the “catalyst” for change.

First, the appellate court agreed that the plaintiff developer satisfied the requirement to negotiate in good faith before filing the lawsuit. The court found that the underlying record made clear that the Township had no interest in negotiating with the developer, and there is no administrative exhaustion requirement in Mount Laurel litigation. Read more

GHC Lawyers Prevail In Trinity Hall Middletown School Dispute

April 20, 2016 | No Comments
Posted by Paul H. Schneider

Following contentious hearings before the Middletown Township Planning Board and subsequent litigation, Superior Court Judge Paul A. Kapalko upheld the Planning Board’s decision to approve construction of Trinity Hall School off Chapel Hill Road in Middletown Township. Rejecting arguments made by several neighboring property owners, the Court ruled that Trinity Hall had presented “more than adequate testimony” from engineers and other professionals to support its application to construct a private all-girls high school, and that there was “ample evidence” presented during the course of seven evenings of hearings before the Planning Board. GHC attorney John A. Giunco presented Trinity Hall’s application to the Planning Board, and GHC attorney Paul H. Schneider represented the school before the Superior Court.

Due Diligence and the Bermuda Triangle: Getting it Done

April 7, 2016 | No Comments
Posted by Marc D. Policastro

Co-authored by Melissa A. Clarke

As published in the Spring 2016 edition of Dimensions

Due diligence can make or break a deal, and there is a lot on the line for those charged with getting it right.  (1)   From an environmental perspective in New Jersey, that can be daunting. The Bermuda Triangle of diligence occurs when on-site sources, off-site sources and “unknown” sources converge. Diligence “death traps” become more than manageable when the developer takes a disciplined approach, staying within the ambit of the Site Remediation Reform Act (SRRA) regulations and the various guidance documents provided by the New Jersey Department of Environmental Protection (NJDEP). (2)

Off-Site Source Groundwater Investigation
One of the most commonly encountered scenarios in due diligence occurs when contamination is found proximate to a contiguous parcel, where the contamination is subject to a prior approval which, miraculously, stopped exactly at the property boundary line. Although the developer’s Licensed Site Remediation Professional (LSRP) is empowered to issue a final approval where the contamination is from an “off-site” source, investors will generally demand that the contamination be cleaned up prior to construction. Read more